Robert Blecker: ‘Why choose to serve evil?’

Law school went by quickly. Law, itself, seemed a repository of so much practical wisdom. We took pride at our professors making a difference in public affairs, while in class, they seemed capable of turning any argument on its head. Of course the legal profession has long trumpeted “professionalism,” emphasizing that there are two sides to every question. Any wonder the public has long despised lawyers, even as they sent their own children to get trained in law? This ambivalence goes back to those ancient Sophists who wandered from city to city, paid handsomely to teach the art of rhetoric to the sons of the rich and rising middle class. Success depended upon convincing at the law courts and entertaining at the legislative assemblies. Eager to collect their fees without local interference, the Sophists soothed those in power anywhere they found work, supporting each city’s values as right for it. Truth was relative; every question had two sides.

The story goes that Protagoras, the greatest Sophist, agreed to train Euathlus on condition that he get half his fee up front, and half when Euathlus won his first case in court. But, after completing his training, Euathlus did not want to appear in court. Protagoras’ competitors spread the word: Euathlus feared to show up in court because Protagoras had trained him poorly. So Protagoras sued Euathlus, arguing to the jury: “Of course Euathlus owes me the rest of my fee. Either you will find for me and by your verdict he owes me my fee. Or you find against me, and by our contract, he will have won his first case in court. Either way, he owes me my fee.” The logic seemed airtight.

But Protagoras had trained Euathlus well to argue both sides and make the weaker argument appear the stronger. Because as soon as Protagoras finished, Eauthlus countered to the jury: “Of course I don’t owe him his fee because either you will find in my favour, or if you do find against me, by the terms of our contract, I have not yet won my first case in court.”

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Someone once defined “tradition” as the forgetting of origins. The first bar association began as an extortion racket. Sophists would threaten to prosecute and derail the careers of the rich and rising, unless they got paid off. But why should the victim pay hush money when someone else could then step forward and prosecute? These extortionists needed an association to enforce the agreement. Things haven’t changed that much in 2,500 years. Thus the story goes — have you any doubt that it’s true? — that a lawyer and the Pope died the same day, and St. Peter escorted them to their Heavenly abode. The Pope happily settled into his one-bedroom garden apartment with a study. Then the lawyer grimaced as St. Peter drove him to the slums of heaven. But they continued to a better part of town, still better, and finally stopped at a palatial oceanfront mansion. “Well, this is yours. For eternity.” The lawyer stood mute, then found his voice. “Please, I’m overwhelmed. But I must ask. The Pope gets a one bedroom, and me, this?” St. Peter smiled. “We got plenty of Popes up here, but you’re the first lawyer.”

So here we were in law school, imbibing ancient sophistic traditions: “There are two sides to every question,” our professors taught us. That didn’t make sense to me. For if there were two sides to every question, then the question of whether there were two sides to every question, itself has two sides. And one side flatly denied there were two sides. Thus its truth would imply its own contradiction. It didn’t make sense logically. Worse, it made no sense morally. But our teachers trained us to argue both sides of every question, insisting “a professional should be willing to zealously represent either side.” I never believed that. Most Americans don’t either.

The school, however, drove it home as gospel: David Shapiro, a famous ACLU lawyer, gave a talk, “Defending Unpopular Clients.” When authorities arrested George Lincoln Rockwell, the leader of the American Nazi Party, for passing out vile hate literature, a friend called Shapiro: No one locally would defend Rockwell; would Shapiro get him a lawyer? Shapiro cast about, but no one wanted to defend the Nazi. “How about you?” his friend asked. “Me? I’m a Jew,” protested Shapiro. “So? I thought everybody’s entitled to a good defence.” Shapiro talked it over with his wife and agreed.

On the opening day of the trial, climbing the courthouse steps, as Shapiro described it to us law students, Rockwell, the Nazi leader, turned to his Jewish lawyer. “Shapiro, however this turns out — win or lose — one day they’ll take you to the ovens and I’ll be laughing the whole way there.” This sunk in during a stunned silence. “I only wish I could have defended Rockwell’s assassin,” Shapiro added wryly.

Judging from the thunderous applause, most of my fellow students considered Shapiro a hero. Defending those who would destroy him displayed consummate professionalism and commitment to the adversary system. To me, he was a fool. Why choose to serve evil? You only live once.

A few years later it would be my turn on stage before a packed house of attentive law students. In 1973, Robert F. Garrow’s court-appointed defence lawyers assured their client he could talk to them in confidence. Had he killed that college student camping in the Adirondacks? “Oh, yeah,” Garrow admitted. “I also killed two others.” The lawyers were skeptical, but Garrow offered to show them where he’d left the bodies. He’d hurled one over the fence of a cemetery. The other, 16-year-old Susan Petz, he had stuffed down an abandoned mineshaft. Garrow drew a map, and his lawyers found and photographed Petz’s body.

Susan Petz’s family could only hope against hope. She had gone camping with Donald Porter, her boyfriend. Porter’s body was found stabbed to death and tied to a tree. Reading that two lawyers now defended a man accused of killing a camper in the Adirondacks, Earl Petz, Susan’s father, flew from Illinois and showed the lawyers a photograph of his daughter, begging them for information. Armani and Belge knew “what hell these parents were going through,” Armani later admitted. Armani’s own brother was lost during an Air Force reconnaissance mission. “I know what torment my mother went through in never having my brother’s body returned.” They also knew for certain they had photographed Susan Petz’s body. But they turned her father away, declaring they had no information to share. “We just couldn’t figure any other way.”

Armani and Belge contacted the local prosecutor’s office, offering to solve two unsolved murders in return for a not-guilty-by-reason-of-insanity plea for their client, suggesting that Garrow should be treated, not punished. The prosecutor refused and took the case to trial. Garrow took the stand at his murder trial, and on cross-examination, he admitted his guilt. “Yeah, I did it. I did two others; I told my lawyers.”

So the community turned against the lawyers. How could they value the confidence of a mass murderer over the torment of the victim’s family? Garrow’s lawyers must be indicted, but for what? A grand jury indicted Belge (not represented by counsel) — but not Armani — for violating the health law in failing to report the location of an unburied body!

After the accused confessed to murdering a teenaged girl, his lawyers refused to tell her parents where the body was hidden, as that would violate their client’s rights

The story has two postscripts. Sentenced to life in prison, Garrow appealed on the ground that his lawyers had been incompetent! Motivated by their own sense of guilt, he argued, they had him take the stand, not to demonstrate his insanity, but to admit to the two other murders, thus releasing them from their vow of silence. His appeal failed, but paralyzed in prison and permanently confined to a wheelchair, Garrow got himself transferred to a less secure facility. Only it turned out he had faked the whole thing. One day he climbed a 15-foot fence and escaped. Fortunately, the police shot him dead a couple of days later.

Years passed and out of the blue, the bar association’s ethics committee formally declared that lawyers in this situation must do what they had done — except they shouldn’t have moved the victim’s head back to her torso before photographing it. Had they revealed the fate of the daughter to the parents, the lawyers would have been subject to discipline.

In the defence bar’s eyes, Garrow’s lawyers were heroes; in my eyes, they were cads. “I would have violated the code of professional responsibility and taken what came behind it,” I insisted in a public debate before a crowd of law students. “Death is difficult enough to accept,” Armani declared. “But worrying and wondering, it’ll drive you insane.”

How could ethics require us to protect the confidences of a mass murdering rapist rather than inform his victim’s family and save their sanity? U.S. Supreme Court Justice Louis Brandeis got it right when he called on future attorneys sometimes to look beyond their clients and become “lawyers for the situation.”Shapiro should never have defended Rockwell; Garrow’s lawyers should have ended the family’s torment, allowing them to bury their child and begin the grieving process. But American lawyers, like the priests they imagine themselves, hold lawyer-client confidentiality as sacred. Well, there was one emergency exception at that time. A lawyer could break that sacred vow — when necessary to collect a fee!

“On every question there are two sides,” the sophists claimed and still do. I knew better. I had always known better. Justice wasn’t simply a matter of opinion. Whatever “progressives” might proclaim, Adolph Hitler, Charles Manson, and Richard Speck were evil and deserved to die. That was moral fact.

In the wake of a Grammy Awards ceremony that disappointed many, from Kanye West to the masses on Twitter lamenting the state of pop music, a historical perspective is key. Few are better poised to offer one than Andy Kim.